Delchamps, Inc. v. Stewart

• Decision Date: 20 October 1971
• Docket Number: 1 Div. 18
• Citation: Delchamps, Inc. v. Stewart, 255 So.2d 586, 47 Ala.App. 406 (Ala. Civ. App. 1971)
• Parties: DELCHAMPS, INCORPORATED v. Claudia STEWART.
• Court: Alabama Court of Civil Appeals

Page 586

255 So.2d 586

47 Ala.App. 406

DELCHAMPS, INCORPORATED v.Claudia STEWART.

1 Div. 18.

Court of Civil Appeals of Alabama.

Oct. 20, 1971.

Rehearing Denied Nov. 17, 1971.

Foreman, Brown & Hudgens, and Peter V. Sintz, Mobile, for appellant.

Cunningham, Bounds & Byrd, Mobile, for appellee.

WRIGHT, Judge.

Appellee, plaintiff below, Claudia Stewart, was a customer in the supermarket of appellant, Delchamps, Inc., at approximately 4:00 p.m. on March 26, 1968.While shopping she slipped on a green onion leaf, fell to the floor and was injured.The extent of her injuries is not involved in this appeal.Suit was brought by appellee on October 15, 1968.The complaint consisting of one count, charged appellant with negligently maintaining the floor of its store which negligence proximately resulted in the injury to appellee.Upon trial by jury, verdict and judgment was entered against appellant in the amount of $7,500.Motion for new trial was denied and appellant appealed.

Appellant assigns as error the refusal by the trial court to give to the jury its written request for the affirmative charge.

The facts of this case bring it within the type of case which has come to be designated by the bar as a 'slip and fall' case.An increasing number of such cases have appeared in recent years in the appellate reports of this State.The basis of the appeal in these cases has almost invariably been the refusal or giving of the affirmative charge.This of course has presented the matter of defining the duty owed by a storekeeper to its business invitees and the evidence required of the plaintiff to prove a prima facie case as to a breach of such duty.

The duty of the storekeeper has been clearly defined in each of such cases and we repeat it here.

There is a duty upon all storekeepers to exercise reasonable care in providing and maintaining reasonably safe premises for the use of their customers.The storekeeper is not an insurer of the customers' safety while on the premises, but is liable for injury only in the event he negligently fails to use reasonable care in maintaining his premises in a reasonably safe condition.S. H. Kress & Co. v. Thompson, 267 Ala. 566, 103 So.2d 171;F. W. Woolworth v. Ney, 239 Ala. 233, 194 So. 667;May-Bilt, Inc. v. Deese, 281 Ala. 579, 206 So.2d 590;Great Atlantic & Pacific Tea Co. v. Bennett, 267 Ala. 538, 103 So.2d 177;Great Atlantic & Pacific Tea Co. v. Weems, 266 Ala. 415, 96 So.2d 741;Great Atlantic & Pacific Tea Co. v. Popkins, 260 Ala. 97, 69 So.2d 274;Standard Oil Co. v. Gentry, 241 Ala. 62, 1 So.2d 29;Gulas v. Ratliff, 283 Ala 299, 216 So.2d 278;Foodtown Stores, Inc. v. Patterson, 282 Ala. 477, 213 So.2d 211.

The burden of proving a breach of duty by the storekeeper is upon the plaintiff as in all negligence cases.The doctrine of res ipsa loquitur does not apply in such cases.It was stated in the case of F. W. Woolworth Co. v. Ney, supra, and quoted thereform in S. H. Kress & Co. v. Thompson, supra, as follows:

"No presumption of negligence arises from the mere fact of injury to a customer.Upon the plaintiff rests primarily the burden of showing that the injury was proximately caused by the negligence of the storekeeper, or one of its servants or employees.Actual or constructive notice of the presence of the offending instrumentality must be proven before the proprietor can be held responsible for the injury. * * *"

It was further stated in the 'Kress' case as follows:

'So to prove negligence on the part of the defendant it is necessary to prove that the foreign substance was on the floor a sufficient length of time to impute constructive notice to the defendant, or that he had actual notice, or that he was delinquent in not discovering and removing it.In the absence of such proof, the plaintiff has not made out a prima facie case that the defendant was negligent in the maintenance of its floors. * * *

'It is not necessary, however, to enter direct evidence as to the length of time a foreign substance has remained on the floor; it is permissible to allow a jury to infer the length of time from the nature and condition of the foreign substance. * * *'

The above quoted statements may be said to have evolved into a rule in 'slip and fall'cases involving foreign substances on the floors of storekeepers.Cases reported in this State have largely involved slipping on vegetable matter, such as lettuce leaves, beans, and in the instant case a green onion leaf.The two most recent such cases are May-Bilt, Inc. v. Deese, supra, andFoodtown Stores, Inc. v. Patterson, supra.Coincidently, both of these cases involved slipping upon a green bean under similar conditions and circumstances.May-Bilt appears to have exhaustively researched and considered every 'slip and fall' case decided by the appellate courts of this State, and in addition thereto various articles and annotations.(61 A.L.R.2d 6, 27 Ala.Lawyer 419 'Wynn--Slip and Fall Cases in Alabama.')After such research and consideration the Supreme Court in May-Bilt concluded the plaintiffs had failed to meet their burden of proof and that the affirmative charge with hypothesis should have been given as requested by May-Bilt.The judgment of the trial court was reversed.

In May-Bilt the court said that the imputation or inference of negligence allowed in the three Great Atlantic & Pacific Tea Co.cases(Bennett, supra, Weems, supra, Popkins, supra), because of the dirty, mashed and crumpled condition of the offending vegetable matter was not applicable because the offending bean was shown to be green and not shown to have been dirty, mashed and crumpled.In response to further contentions as to the state of the evidence in May-Bilt the court said as follows:

'The Deeses argue that defendant's stockroom boy and weighing-station girl, who were standing near where Mrs. Deese fell, had an unobstructed view of the area and must have, or should have, seen the bean prior to Mrs. Deese's fall and were negligent in not removing it.However, there is no evidence that either employee saw the bean, nor is there evidence to support a reasonable inference that, in the exercise of ordinary or reasonable care, they should have seen it between the time it got on the floor and the time of the accident.There is no evidence as to how long the bean had been on the floor.For aught appearing it might have been dropped there immediately before Mrs. Deese slipped on it. * * *'

As previously stated herein, under an almost identical factual situation as in May-Bilt, the Supreme Court in Foodtown Stores affirmed a judgment in the lower court for plaintiff and stated the affirmative charge was correctly refused under the 'Scintilla Rule.'This is noteworthy because the decision in Foodtown Stores quoted extensively from May-Bilt.However, the court expressly distinguished from May-Bilt and Kress on the facts.It was stated in Foodtown Stores as follows:

'We do not think that what we define as a 'stop watch' rule should be adopted by the court in actions such as these by holding, as a matter of law, any particular time shall govern as to whether the sweeping, cleaning, or lack of sweeping and cleaning is negligence.Each case should be decided upon its specific facts.We hold the rule to be that no absolute or positive invariable rule can be announced that can be applied to each case, and which will correctly define the duties of store keepers (invitors) in all cases, or the duties of the invitees (customers).The duties and liability of the invitor (store keeper), and the duties, risks and rights of the invitees (customers) must of necessity depend upon the circumstances of each particular case. * * *'

We subscribe to the rule as stated in this quotation.

In the instant casewe can find no evidence to support an inference of negligence because of the condition of the onion leaf as described by the witnesses.Plaintiff and her sister each described the leaf as green and undamaged except for the end upon which plaintiff had slipped and fallen.There is no reasonable inference to be obtained from the evidence other than the mashed and dirty portion of the leaf was due to it having been stepped and slid upon by plaintiff as she fell.Thus, the factual inference that the leaf had been on the floor for such a length of time as to place a duty upon defendant to discover and remove it is not present.

Without exception, so far as the recital of evidence in each indicates, the falls in every case upon vegetable matter cited herein, occurred at or in the immediate vicinity of the vegetable counter.Perhaps it could be contended, as was indicated in Foodtown, the storekeeper should exercise more care or be more diligent in inspecting and cleaning in the area of the vegetable sales counter when it is known, even judicially according to Foodtown, that customers are likely to drop or knock vegetables to the floor.If such contention could be made, it does not apply to this case, as the evidence was undisputed the plaintiff slipped and fell on the onion leaf two aisles away from the vegetable counter.

In this case there was evidence that the assistant manager had passed up the aisle some five or ten minutes prior to plaintiff falling and did not see the leaf on the floor, though it was his custom when moving about the store to observe the stock and the floors.

It was shown that the porter swept the floors three times daily.It has been some three to four hours since he had last swept.Under the 'stop watch' rule without some evidence that the floor was otherwise dirty or littered, the time since the last sweeping raises no inference of negligence or indicates lack of reasonable...